SCO: Without Fear and Without Research

by Eben Moglen

Monday 24 November 2003

There's a traditional definition of a shyster: a lawyer who,
when the law is against him, pounds on the facts; when the facts are
against him, pounds on the law; and when both the facts and the law
are against him, pounds on the table. The SCO Group's continuing
attempts to increase its market value at the expense of free software
developers, distributors and users through outlandish legal theories
and unsubstantiated factual claims show that the old saying hasn't lost
its relevance.

Just The Facts

SCO continues to claim in public statements about its lawsuit against
IBM that it can show infringement of its copyrights in Unix Sys V
source code by the free software operating system kernel called Linux.
But on the one occasion when SCO has publicly shown what it claimed
were examples of code from Linux taken from Unix Sys V, its
demonstration backfired, showing instead SCO's cavalier attitude
toward copyright law and its even greater sloppiness at factual
research.

On August 18, 2003, SCO's CEO, Darl McBride, offered a slide
presentation of supposed examples of infringing literal copying from
Sys V to Linux at a public speech in Las Vegas. Within hours the free
software and open source communities had analyzed SCO's supposed best
evidence, and the results were not encouraging for those investors and
others who hope SCO knows what it is talking
about.[1]

In Las Vegas Mr. McBride offered two examples of code from the
Linux program that were supposedly copied from Sys V. The first
implements the “Berkeley Packet Filter” (BPF) firewall.
Indeed, the Linux kernel program contains a BPF implementation, but it
is the original work of Linux developer Jay Schulist. Nor did SCO
ever hold an ownership interest in the original BPF implementation,
which as the very name shows was originally part of BSD Unix, and
which was copied, perfectly legally, into SCO's Sys V Unix from BSD.
Because the BPF implementations in Sys V and Linux have a common
intellectual ancestor and perform the same function, SCO's
“pattern-matching” search of the two code bases turned up
an apparent example of copying. But SCO didn't do enough research to
realize that the work they were claiming was infringed wasn't their
own (probably because they had “carelessly” removed the
original copyright notice).

Mr. McBride's second example was only slightly less unconvincing.
Mr McBride showed several dozen lines of memory allocation code from
“Linux,” which was identical to code from Sys V. Once
again, however, it turned out that SCO had relied on
“pattern-matching” in the source code without ascertaining
the actual history and copyright status of the work as to which it
claimed ownership and infringement. The C code shown in the slides
was first incorporated in Unix Version 3, and was written in 1973; it
descends from an earlier version published by Donald Knuth in his
classic The Art of Computer Programming in 1968.
AT&T claimed this code, among other portions of its Unix OS, as
infringed by the University of California in the BSD litigation, and
was denied a preliminary injunction on the ground that it could not
show a likelihood of success on its copyright claim, because it had
published the code without copyright notices and therefore, under
pre-1976 US copyright law, had put the code in the public domain. In
2002, SCO's predecessor Caldera released this code again under a
license that permitted free copying and redistribution. Silicon
Graphics, Inc. (SGI) then used the code in the variant of the Linux
program for “Trillium” 64-bit architecture computers it
was planning to sell but never shipped. In incorporating the code,
SGI violated the terms of Caldera's license by erroneously removing
Caldera's (incorrect) copyright notice.

Thus SCO's second example was of supposedly impermissible copying of
code that was in the public domain to begin with, and which SCO itself
had released under a free software license after erroneously claiming
copyright. SGI had complicated matters by improperly removing the
inaccurate copyright notice. So how many PCs and Intel-architecture
servers around the world contained this supposedly infringing code?
Zero. No version of the Linux program for Intel architectures had
ever contained it. No SGI hardware for which this code was
written ever shipped. HP, which sells 64-bit Itanium servers, has
removed the code from the IA-64 branch of the Linux code tree; it was
technically redundant anyway. But SCO's research went no farther than
discovering a supposed instance of “copying,” without
asking whether SCO had any rights in what had been copied, and
certainly without providing the audience to whom it was speaking any
indication that the “Linux” it was talking about was a
variant for rare computers from which the supposedly-offending code
had already been removed.

What the Las Vegas “examples” actually demonstrated was
that SCO's factual claims were irresponsibly inflated when they
weren't being kept artfully “secret.” With the facts
running against them even when the facts were of their own choosing,
it was unsurprising that after August SCO turned to the law. But the
law was not on their side either.

Making Up the Law

SCO's legal situation contains an inherent contradiction. SCO claims,
in the letters it has sent to large corporate users of free software
and in public statements demanding that that users of recent versions
of the kernel take licenses, that the Linux program contains material
over which SCO holds copyright. It also has brought trade secret
claims against IBM, alleging that IBM contributed material covered by
non-disclosure licenses or agreements to the Linux kernel. But it has
distributed and continues to distribute Linux under GPL. It has
therefore published its supposed trade secrets and copyrighted
material, under a license that gives everyone permission to copy,
modify, and redistribute. If the GPL means what it says, SCO loses
its trade secret lawsuit against IBM, and cannot carry out its threats
against users of the Linux kernel.

But if the GPL is not a valid and effective copyright permission, by
what right is SCO distributing the copyrighted works of Linux's
contributors, and the authors of all the other copyrighted software it
currently purports to distribute under GPL? IBM's counterclaim
against SCO raises that question with respect to IBM's contributions
to the Linux kernel. Under GPL section 6, no redistributor of GPL'd
code can add any terms to the license; SCO has demanded that parties
using the Linux kernel buy an additional license from it, and conform
to additional terms. Under GPL section 4, anyone who violates GPL
automatically loses the right to distribute the work as to which it is
violating. IBM therefore rightly claims that SCO has no permission to
distribute the kernel, and is infringing not only its copyrights, but
those of all kernel contributors. Unless SCO can show that the GPL is
a valid form of permission, and that it has never violated that
permission's terms, it loses the counterclaim, and should be
answerable in damages not only to IBM but to all kernel contributors.

IBM's counterclaim painted SCO into a corner on the subject of the
GPL. Not only the facts but also the law are now fundamentally
against SCO's increasingly desperate position. SCO and its
predecessor, Caldera, have benefited enormously from the protections
of the GPL. Thanks to the GPL, SCO has been able, for example, to use
the invaluable work of compiler designers and implementers around the
world who have made GCC the premier cross-platform C compiler.
Customer applications run on SCO's Sys V Unix because of GCC, to which
SCO contributed modifications particular to its system, and for which
it assigned copyright to the Free Software Foundation. Caldera and
SCO could not have marketed a usable operating system product without
the contributions of the free software community. SCO was happy to
take the benefits, but it has unethically sought to avoid its
responsibilities. The law does not permit SCO to have it both ways.

So now it has become time for SCO and its lawyers to pound the table.
SCO's response to IBM's counterclaim has been a round of absurd
attacks on the GPL, its users, and its publisher, the Free Software
Foundation. The GPL, SCO's answer to IBM's counterclaim alleges,
violates not just federal statutes but also the United States
Constitution. How a private copyright holder can violate the US
Constitution by giving others permission to copy, modify and
redistribute its work SCO does not deign to say. Legal theories
aren't secrets; if SCO's lawyers had anything to offer in support of
this novel proposition, they would offer it. Not one case decided in
the long history of US copyright affords support to this ridiculous
conception of an unconstitutional copyright license. No lawyer of my
reasonably broad acquaintance, no matter what his or her view of the
GPL may be, takes this moonshine seriously. After failing on the
facts, failing on the law, and raising no more than derisive laughter
from pounding the table, even the proverbial shyster is out of luck.
What will we see next from SCO, an attack on the umpire?

Footnotes

The most complete review of the SCO Las Vegas
presentation was written by Bruce Perens, and
is archived.

Eben Moglen is General Counsel to FSF, and serves on its board
of directors.